67th Congress'! 
2(i Session / 


SENATE 


Document 
No. 234 


THE CONSTITUTION IS THE 
HIGHER LAW 


An Answer to Articles written by 
Hon. Walter Clark^ Chief Justice of 
the North Carolina Si^preme Court 


BY 

•PRESTON A. SHINN 

OF PAWHUSKA, OKLAHOMA 


9 ' 2 ^ ^ 


PRESENTED BY MR. HARRELD 
April 20 (calendar day, July 15, 1922).—Ordered to be printed 


WASHINGTON 

GOVERNMENT PRINTING OFFICE 
1922 


Mono^p^t 







LIBRARY OF CONSRESB 

I .RKSIVED 

D0CMMKNT3 EI|V(«I0N 







THE CONSTITUTION IS THE HIGHER LAW. 


AN ANSWER TO ARTICLES WRITTEN RY HON. WALTER 
CLARK, OF THE NORTH CAROLINA SUPREME COURT. 


Hon. Walter Clark, of the North Carolina Sui^reme Court, has 
written several articles (which have been made public documents of 
the United States Senate), denying the authority of the United 
States Supreme Court to declare acts of Congress unconstitutional.^ 
The question has recently been and is now before the Senate of the 
United States, and the articles of Justice Clark are receiving a gen¬ 
erous circulation. It is evident, from the documents, that Justice 
Clark favors a government, not republican in form, but a democracy. 
Because of the very high position of Justice Clark, being the head of 
one of the great judicial bodies of the country, these articles will have 
very great weight with the public, and may be expected to do the 
cause of constitutional Government great injury. 

The justice builds his structure on erroneous facts and history; 
fans the embers of prejudice until the castle is in flames, and then 
calls on the guests to save themselves by jumping fi'om a tenth-story 
window. He says that the delegates who drafted, and the people 
who adopted the Constitution of the United States, did not know 
that the court would have authority to declare acts of Congress void, 
nor did they intend that the court have such authority; that the in¬ 
strument itself fails to supply the authority. 

The cornerstone of his structure has been condemned by every 
master builder to whom it has been presented. He thus states it: 
“ This is in accordance with the theory of our Government, which is 
that the lawmaking body is one of restrictions: 

That is, that it represents the people and has all power that is 
not denied it by the organic law, whereas, the Executive and ju¬ 
dicial are grants of power and have no authority except that con¬ 
ferred by the Constitution. This is the statement made by Black, 
and sums up correctly the analysis of our State and Federal Con¬ 
stitutions as they are written.” ^ This statement is probably true 
as to the State constitutions, but no basic error could be greater 
than the above statement that Congress “ has all power that is not 
denied it by the organic law,” when applied to the Federal Con¬ 
stitution. The States were 13 years old when the Federal Govern¬ 
ment was born, and the States, or the people, created the Federal 
Government by delegating to it certain authority belonging to the 
State and its people, retaining in the State, and its people, all the 
remaining poAvers and authority which it then had. Nothing in the 
science of our government is more firmly established than that the 


1 Government by Judges; Some Myths of the f^w ; Some Defects in the Constitution of 
the United States ; Back to the Constitution. 

2 Back to the Constitution, p, 3. 

76966—22 1 




2 


THE CONSTITUTION IS THE HIGHER LAW. 


United States is a government of delegated powers and authority— 
that Ave look to its Constitution to determine what the Congress 
can do; that the State constitutions are a limitation upon authority, 
and the legislature can enact all laAvs, except Avherein it is for¬ 
bidden. It is because of the fact that the Federal Constitution is 
an instrument of delegation that it becomes necessary for the people 
to have a tribunal, other than the Congress, to protect the States, 
and the people, from the encroachments of Congress. 

The powers not delegated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the States respectively, or to the 
people.^ 

The ConATntion that drafted the Constitution met in 1787, and 
Avas in session for more than six months. Justice Clark devotes 
much space to the ConA^ention, and says: 

Even in such a convention, thus composed and thus secluded from the 
influence of public opinion, the persistent effort to grant the judges such 
power was repeatedly and overwhelmingly denied. The proposition was made, 
as we now know, from Mr. Madison’s journal, that “ the judges should pass 
upon the constitutionality of acts of Congress.” This Avas defeated June 4, 
receiving the votes of only two States. It was renewed no less than three 
times, i. e., on June 6, July 21, and tinally again, for the fourth time, on 
August 15, it was brought forward, and though it had the powerful support 
of James Madison, afterwards President Madison, and James AVilson, after- 
Avards a justice of the United States Supreme Court, the proposition at no 
time received the votes of more than three States. On this last occasion, 
August 15, Mr. Mercer thus summed up the thought of the Convention, as 
evidenced by its vote: “He disapproved of the doctrine that the judges, as 
expositors of the Constitution, should have authority to declare a laAv void. 
He thought the laAvs ought to be Avell and cautiously made, and then to be 
incontrovertible.” ^ 


It is the intention of Justice Clark to say that the CoiiA^ention 
ATited on this question: “The judges should pass upon the con¬ 
stitutionality of the acts of Congress,” and he attempts to prove 
that Mr. Mercer expressed the thought of the Convention by quot¬ 
ing a part of the speech of Mr. Mercer, as reported in Mr. Madison’s 
journal of the proceedings of the Convention. I have examined 
three editions of Madison’s Journal, and the ConA’ention did not have 
this question before it on August 15, nor on any other day.^ 

The Virginia delegation in the ConATntion, by GoATrnor Ran¬ 
dolph, presented a set of resolutions to the Coni'ention, as a plan 
or basis for a Constitution. The eighth resolution provided for a 
“ Council on Revision ” of the acts of Congress, composed of the 
Executive and a convenient number of the Supreme Judiciary, and 
if this “ Council on Revision ” failed to agree Avith Congress on the 
policy of the proposed hnv, it then Avould become necessary for 
Congress to pass the same over the veto of the “ Council on Re¬ 
vision ” by a - vote of Congress. 

This number Avas left blank, same to be filled in by a vote of 
the ConA'^ention. J he debates of tlie C onA’^ention conclusiA^ely proA'e 
that the object of haAung this “ Council on Revision” Avas'to pass 
upon the policy of enacting the proposed laAv, and it Avas Avhat Ave 
knoAv to-day as the veto poAver of the President. This question 


1 Tenth amendment to United States Constltntion. 

2 Government by .Tudges, p. !). 

TO? "sT'Ss'lia'Sirou':'? 






THE CONSTITUTION IS TPIE HIGHER LAW. 


3 


was before the Convention several times, and each time practically 
in the same form. On Ang’iist 15, the last time, Mr. Madison moved 
‘‘ that all acts before they become laws should he submitted both 
to the h^xeciitive and Supreme Jndiciary Departments, that if either 
of these should object two-thirds of each House, if both should 
object, three-fourths of each House should be necessary to overrule 
the objections and ^ive to the acts the force of law.” ^ “^This motion 
was seconded by Mr. Wilson. 

i\Ir. Uiiickney opposed the interference of the jiidj^es in the legislative 
business: It will involve them in parties, and ^ive a previous tincture to their 
opinions." 

INIr. iMercer heartily approved the motion. It is an axiom that the judiciary 
ought to he separate from the legislative: hut ecpially so that it ought to 
he independent of that department. The true policy of the axiom is that 
the legislative usurpation and oppression may he obviated. He disapproved 
of the doctrine that the judges as expositors of the Constitution should have 
authority to declare a law void. He thought laws ought to he well and 
cautiously made, and then to he uncoutrollahle [incoutrovertihle].® 

iMr. Cekhy. This motion comes to the same thing with what has been already 
negatived.'' 

Mr. Mercer, who had only been in the Convention since August 
6, had evidently been informed as to the previous attitude of the 
delegates on the right of the Supreme Court to declare laws of Con¬ 
gress unconstitutional, and he was opposed to this “ doctrine,” and 
favored the judges participating with the Executive in the veto 
])ower. But the Convention voted against the view of Mr. Mercer 
by a vote of eight States to three.^ JMr. Mercer was with the 
minority, and not the majority, as stated by Justice Clark, supra. 

Mr. Dickenson was strongly impressed with the remark of Mr. IMercer as 
to the power of the judges to set aside the law. He thought no such power 
ought to exist. He was at the same time at a loss what expedient to sub¬ 
stitute.® 

Thus we find Mr. Dickenson supporting the position of Mr. 
Mercer, but admitting that some plan, or ‘'expedient” was neces¬ 
sary to hold the Congress in check. Delaware, the State of Mr. 
Dickenson, and Maryland, the State of Mr. Mercer, were of the 
three States that voted for the motion. The question had been 
settled in the minds of the delegates, as evidenced by their former 
proceedings, and they, refused to concur in the view of Mr. Mercer, 
and he did not express the “ thought of the Convention, as evidenced 
by its vote.” 

The question was first before the Convention on June 4 in this 
form: “ Kesolved, that the* Executive, and a convenient number of 
the national judiciary, ought to compose a council of revision,” 
being the first clause of Randolph’s eighth resolution.® 

Mr. Gerry doubts whether the judiciary ought to form a part of it, as they 
will have a sullicient check against encroachments on their own department 
by their exposition of the laws, which involved a power of deciding on their 
constitutionality. In some States the judges had actually set aside laws a.s 
being against the Constitution. This was done, too, with general approba¬ 
tion. It was quite foreign from the nature of the office to make them judges 
of the policy of public measures. He moves to postpone clause in order to 

1 The three editions of Madison’s .Tournal, Aug. 15. 1787. 

2 Madison’s .Tournal, Aug. 15, vol. 3, Doc. Hist. Con., 537. 

3 Ibid., 537. 

Mhid., 537. 

3 Madison’s Journal, Aug. 15, vol. 33, Doc. Hist. Con., 538. 

® Madison’s Journal, June 4, vol. 3, Doc. Hist. Con., 18, 54. 



4 


THE CONSTITUTION IS THE HIGHER LAW. 


propose “that the national Executive shall have a right to negative any 

legislative act which shall not he afterwards passed hy - parts of each 

branch of the National Legislature.” ^ 

Mr. King seconds the motion, observing that the judges ought to he able 
to expound the law as it should come before them, free from the bias of having 
l)articipate{l in its formation.* * The Gerry motion carried and the question 
was not furthei- considered until the 6th. when the question was the same 
as on the 4th. On the 6th, Mr. Madison said: “ An association of the judges in 
this I'evisionary function would both double the advantage, and diminish the 
danger. It would also enable the Judiciary Department the better to defend 
itself against legislative encroachments. Two ol)jections had been nijide— 
first, that the judges ought not to be subject to the bias which a participation in 
the making of laws might give in the exposition of them; secondly, that the 
Judiciary Department ought to be separate and distinct from the other great 
departments. The tirst objection had some weight.” ** 

He then goes on in explanation of these objections. Others spoke 
on the question, but the motion to join the judiciary with the Execu¬ 
tive in the veto power was defeated. 

The same question, upon motion by Mr. Wilson, was fully debated 
by the Convention on July 21. It is somewhat strange that Justice 
Cdark thought best not to advise the public of what was said in the 
debates on the 21st and the other days when this question was being 
considered. He mentions a very small part of the speech of Mr. 
Mercer, on August 15, and then brushes the question aside as being 
settled by his oAvn statement that the Convention did not intend that 
the court have this authority. Because of his high public position, 
the public is expected to consider the question as settled. On the 
21st Mr. I¥ilson moved as an amendment to the tenth resolution 
“ That the Supreme National eTudiciary should be associated with 
the Executive in the revisionary power.” 

^Ir. AYilson said: 

This proposition had been before made and failed; bnt he was so confirmed 
by reflection in the opinion of its utility that he thought it incumbent on him 
to make another effort. The judiciary ought to have an opixudunity of remon¬ 
strating against projected encroachments on the people as well as on them¬ 
selves. It had been said that the judges, as expositors of the laws, would have 
an opportunity of defending their constitutional rights. There was weight in 
this observation; but tins power of the judges did no go far enough. Laws 
may be unjust, may be unwise, may be dangerous, may be destructive; and yet 
may not be so unconstitutional as to justify the judges in refusing to give 
them effect. Let them have a share in the revisionaiy power, and they will 
have an opportunity of taking notice of those characters of a law, and of 
counteracting, hy the weight of their opinions, the improper views of the 
legislature.'* 

Mr, Gorham did not see the advantage of employing the judges in this way. 
As judges they are not to be presumed to possess any peculiar knowledge of 
the mere policy of public measures. Nor can it be necessary as a security for 
their constitutional rights.® 

Mr. Gerry did not expect to see this point, which had undergone full discus¬ 
sion, again revived. The object he conceived of the revisionary power was 
merely to secure the executive department against legislative encroachment. 
The Executive, therefore, who will best know and be ready to defend his rights 
ought alone to have the defense of them.® 

INIr. Strong thought, with IMr. Gerry, that the power of making ought to be 
kept distinct from that of expounding the laws. No maxim was better estab- 


1 Madison’s Journal, June 4, vol. 3, Doc. Hist. Con., 54. 
a Ibid., 55. 

3 Madison’s Journal, June 6, vol, 3, Doc. Hist. Con., 77. 

* Madison’s Journal, July 21, vol. 3, Doc. Hist. Con., 39©. 
®Ibid., 391. 

«Ibid., 392. 




THE CONSTITUTION IS THE HIGHER LAW. S 

lished. The judges in exercising the function of expositors might be influenced 
by the part they had taken in passing the laws.^ 

Mr. L. Martin considered the association of the judges with the executive as: 
a dangerous innovation; as well as one that could not produce the particular 
advantage expected from it. A knowledge of mankind and of legislative; 
affairs can not be presumed to belong in a higher degree to the judges than t® 
the legislature. And as to the constitutionality of laws, that point will come 
before the judges in their official character. In this character they have a 
negative on the laws. Join them with the Executive in the revision, and they 
will have a double negative.^ 

Colonel Mason observed that the defense of the Executive was not the sof* 
object of the revisionary power. He expected even greater advantages from it. 
Notwithstanding the precaution taken in the constitution of the legislature. Ft 
would still so much resemble that of the individual States that it must be ex¬ 
pected frequently to pass unjust, pernicious laws. This restraining power vfasE 
therefore essentially necessary. It would have the effect, not only of hinckar- 
ing the final passage of such laws, but would discourage demagogues from at¬ 
tempting to get them passed. It has been said (by Mr. L. Martin) that if Ifee 
judges were joined in this check on the laws, they would have a double 
tive, since in their expository capacity of judges they would have one negative^ 
He would reply, that in this capacity they could impede, in one case only, the* 
operation of the laws. They could declare an unconstitutional law voicL Bat. 
with regard to every law, however unjust, oppressive, or pernicious, that 
not come plainly under this description, they would be under the necessity, ax 
judges, to give it a free course. He wished the further use to be made of tfec 
judges of giving aid in preventing every improper law.® 

Mr. Rutledge thought the judges of all men the most unfit to be concerned; 
in the. revisionary council. The judges ought never to give their opinion on st 
law till it comes before them. He thought it equally unnecessary. The ExeciF- 
tive could advise with the officers of State, as of War, Finance, etc,, and avail 
himself of their information and opinions.^ 

The motion of Mr. Wilson to join the judiciary with the Execu¬ 
tive as a council of revision failed, and it was left, as the Convention 
had already decided, with the Executive, whose title at that time 
had not been fixed by the Convention, but was afterwards termed 
“ the President.” He retains this authority to-day, and it requires; 
a tAvo-thirds vote to pass the act over the ATto of the President. 
From the above debate it Avill appear that it was generally con¬ 
sidered by the CoiiATntion that under the Constitution the Su¬ 
preme Court Avould have authority to declare void laAVS unconsti¬ 
tutional. Many of the speakers so declared, and in no instance was: 
there a member avIiG denied the right. It Avill be noticed from the 
debates, supra, that each speaker considered the council on revisio® 
only for the purpose of passing on the policy, or advisability, of 
enacting the proposed laAV, and not as suggested by Justice Clark, 
supra. 

The mind of the Convention Avas expressed incidentally on other* 
occasions. It Avas urged in the Convention that Congress have au¬ 
thority to negative any laAv of a State Avhich might conflict with the 
Federal laAvs. 

Mr. Sherman thought it unnecessary, as the courts of the States would not 
consider as valid any law contravening the authority of the Union.® 

On August 22 the question of ex post facto laws was before the 
ConA^ention, and Mr. Williamson said: 


> Madison's .Tournal, .July 21, vol. 3, Doc. Hist. Con., 393. 

2 Ibid., 395. 

3 Ibid., 396. 

■» Ibid., 399. 

3 Madison's Journal, July 17, vol. 3, Doc. Hist. Con.. 351. 



6 


THE CONSTITUTION IS THE HIGHER LAW. 


Such a prohibitory clause is in tlie Constitution of North Carolina, and 
tliouRh it had been violated, it has done much g'ood there and may do good here, 
because the judges can take hold of itd 

And again, on August 28, we find 

Mr. Madison. Is not that already done by the prohibition of ex post^ facto 
laws, which will oblige the judges to declare interferences null and void?^ 

So if Madison’s Journal, cited by Justice Clark, and the letters 
written by members of the Convention are to be given their proper 
weight there can be no doul)t as to the intention of the Convention 
to confer in the Constitution authority upon the Supreme Court to 
declare void acts of Congress unconstitutional. When the history of 
the Constitution is studied step by step we can not doubt but that 
the language of the Constitution confers the authority. On August 
26 the present section 2 of Article III read: “The judicial power 
shall extend to all cases, in law and equity, arising under the laws of 
the United States, * * * On August 27 Doctor Johnson moved 

to insert the words Ahis Constitution and the’ before the word 
‘ laws.’ ” * 

Mr. Madison doubted whether it was not going too far to extend* 
the jurisdiction of the court generally to cases arising under the Con¬ 
stitution, and whether it ought not to be limited to cases of a judi¬ 
ciary nature. The right of expounding the Constitution in cases 
not of this nature ought not to be given to that department.^ 

The motion of Dr. .Tohiison was agreed to iiem. con., it being generally siip- 
I)Osed, that the jurisdiction given was constructively limited to cases of a 
judiciary nature.® 

Section 2 of Article III, now reads: “The judicial power shall 
extend to all cases, in law and equity, arising under this Constitu¬ 
tion, the laws of the United States * * Xo one will doubt 

but that the Constitution is an instrument of greater authority than 
congressional acts, and Article VI, of the Constitution, wherein it 
says: “This Constitution, and the laws of the United States wdiich 
shall be made in pursuance thereof * * * shall be the supreme 

law of the land,” is conclusive on this point. The judicial power 
extends to all cases arising under the Constitution and the laws of 
the United States, Avhich shall be made in pursuance thereof—then, 
is it not necessary for the court, when the question is properly raised, 
to say whether or not the act of Congress is authorized by, or in 
“ pursuance ” of, the Constitution ? 

Justice Clark in each of his articles says that Jefferson, Jackson, 
and Lincoln, criticized the Supreme Court, intending, no doubt, 
to leave the impression that each of them questioned the authority 
of the Court to choose between the Constitution and the acts of 
Congress. Some of these men were on several sides of many ques¬ 
tions—let them speak for themselves. Shortly after the election of 
Mr. Jefferson to the presidency, the Legislature of Khode Island 
presented him with a congratulatory address soliciting an expres¬ 
sion of his views on the Federal Constitution, and in his reply thereto 
Mr. Jefferson said: 


* Madison’s Journal, Aug. 22, vol. .5, Doc. Hist. Con., 593. 
*Mauli.son’s Journal, Aug. 28, vol. 3, Doc. Hist. Con. 631. 

* Madison’s Journal, Aug. 27, vol. 3, Doc. Hist. Con., 626. 



THE CONSTITUTION IS THE HIGHER LAW. 


7 


Tlie Constitution shall he adininisterea me accordinj^ to the safe and 
honest ineanini>: contemplated by the jdain understanding of the people at 
tne time of its adoption—a meaning to be found in the explanations of those 
who aihocated, not those who opposed it. These explanations are preserved 
111 the publications of the time.' 

hat were the pulilications of the time ? After the Convention 
had concluded its labors, the proposed Constitution was submitted 
to the people of the State for adoption. Xot to tlie legislatures of 
the States, as suggested by Justice Clark, but to the people through 
their chosen delegates, for that purpose.^ In many of the States 
there was great opposition to the adoption of the Constitution, botli 
by speeches and through the press. Its enemies raised every con¬ 
ceivable objection to its adoption. That the Congress had too 
much power; that the President would become a king, and that too 
much authority had been given to the Federal courts. The friends 
of the Constitution did not deny that great power had been given 
to the courts, and that it woukCbe the duty of the Supreme Court 
to declare void acts of Congress unconstitutional, but defended the 
same, both by public speeches and through the press. 

^ Hamilton, one of the most active members of the Constitutional 
Convention, and Madison, also a member of the Convention, known 
as the “ father of the Constitution,” with John Jay, published a 
series of articles under the name of Publius ” defending and ex- 
jiounding the meaning of the Constitution. These articles Avere 
copied by the press in most of the States Avhere there Avas a con¬ 
test, and Avere published in pamphlet form and given A^ery Avide cir¬ 
culation, becoming knoAvn as the Federalist.” Six of these ar- 

^ tides are deAmted to the judiciary, and they are most instructive. 
Xo doubt Mr. Jefferson had the Federalist in mind Avhen he Avrote 
to the Legislature of Rhode Island. In Xo. LXXVIII (and eA'ery- 
one should read the entire paper) Mr. Hamilton said: 

The complete iiidepeiuleiice of tlie courts of justice is peculiarly essential in 
' a limited constitution. I>y a limited constitution I understand one Avliicli con- 
■ tains certain specified exc*eptions to the legislative authority; such, for instanc*e, 
as that it shall pass no bills of attainder, no ex po.st facto laws, and the like. 
Limitations of this kind can be preserved in practice no other Avay than through 
the medium of the courts of justice, whose duty it must be to declare all acts 
i contrary to the manifest tenor of the Constitution void. Without this, all the 
“ ^ reservations of particular rights or privileges Avould amount to nothing. 

Some perplexity respecting the rights of the courts to pronounce legislative 
^ ' acts void because contrary to the Constitution has arisen from an imagination 
- that the doctrine Avould imply a superiority of the judiciary to the legislative 
poAver. It is urged that the authority Avhich can declare the acts of another 
I void must necessarily ))e superior to the one whose acts must be declared void. 
As this doctrine is of great importance in all the American constitutions, a 
brief discussion of the ground on Avhich it rests can not be unacceptable. 

There is no position which depends on clearer principles than every act of 
delegated authority contrary to the tenor of the commission under which it is 
exercised is void. No legislative act, therefore, contrary to the Constitution 
can be valid. To deny this Avould be to affirm that the deputy is greater than 
his principal; that the servant is above his master; that the representatiA^es 
of the people are superior to the people themseh’es; that men acting by virtue 
of poAvers may do not only Avhat their poAvers do not authorize but Avhat they, 
forbid. 

A constitution is, in fact, and must be regarded by the judges as a fundamen¬ 
tal laAV. It therefore belongs to them to ascertain its meaning, as Avell as the 


1 Elliot’s Debates, vol. '4, p. 446. 

2 Elliot’s Debates, a'oI. 1, pp. 319, 335, Article VII of Constitution. 



8 


THE CONSTITUTION IS THE HIGHER LAW. 


meaning of any particular act proceeding from the legislative body. If there 
should happen to be an irreconcilable varience between the two, that which has 
the superior obligation and validity ought, of course, to be preferred; or, in 
other words, the constitution ought to he preferred to the statute, the intention 
of the people to the intention of their agents. 

Nor does this conclusion l)y any means suppose a superiority of the judicial 
to the legislative power. It only supposes that the power of the people is 
superior to both; and that where the will of the legislature, declared in ^ its 
statutes, stands in opposition to that of the people, declared in the Constitution, 
the judges ought to he governed by the latter rather than the former. They 
ought to regulate their decisions by the fundamental laws rather than by those 
which are not fundamental. 

Can argument be more convincing than the above from Hamilton ? 
John Marshall was one of the delegates to the Virginia Convention 
wliich adopted the Constitution. The Constitution was most bitterly 
fought in that Convention. Patrick Henry with all the force of his 
great eloquence led the fight against its adoption, and did not 
overlook the Supreme Court of the United States. In reply Mr. 
Marshall said in part: 

These, sir, are the points of Federal jurisdiction to which he objects, with a 
few exceptions. Let us examine each of them with a supposition that the same 
impartiality will be observed there as in other courts, and then see if any 
mischief will result from them. With respect to its cognizance in all cases 
arising under the Constitution and the laws of the United States, he says that, 
the laws of the United States being paramount to the laws of the particular 
States, there is no case but what this will extend to. Has the Government of 
the United States power to make laws on every subject? Does he understand 
it so? Can they make laws affecting the mode of transferring property, or 
contracts, or claims, between citizens of the same State? Can they go beyond 
the delegated powers? If they were to make a law not warranted by any of 
the powers enumerated, it would be considered by the judges as an infringe¬ 
ment of the Constitution which they are to guard. They would not consider 
such a law as coming under their jurisdiction. They would declare it void.^ 

Patrick Henry, among other things, said: 

When Congress, by virtue of this sweeping clause, will organize these courts, 
they can not depart from the Constitution, and their laws in opposition to the 
Constitution would be void. If Congress, under the specious pretense of pur¬ 
suing this clause, altered it and prohibited appeals as to fact, the Federal 
judges, if they spoke the sentiments of independent men, would declare their 
prohibition nugatory and void.^ 

Wilson and others, in Pennsylvania; Ellsworth and Sherman, in 
Connecticut; and delegates in all the conventions where the question 
Avas raised, admitted that the Constitution gave the authority to 
the Supreme Court, and defended it. President Adams, knowing 
John Marshall’s avowedly strong views on the authority of the 
court in this regard, appointed him in 1801 Chief Justice of the 
court, saying, “ This * is the greatest act of my administration.” 
Luther Martin, a delegate from Maryland to the Constitutional Con¬ 
vention, refused to sign the instrument and wrote a letter to the 
people of Maryland, in Avhich he called attention to the many things 
which he considered defects in the new Constitution, and urged the 
people not to adopt it, had this to say of the court: 

Whether, therefore, any laws or regulations of the Congress, any acts of its 
president or other officers, are contrary to, or not warranted by, the Constitu¬ 
tion, rests only with the judges who are appointed by Congress, to determine; 
by whose determination every State must be bound.® 


1 Elliot’s Debates, vol. 3, p. 563. . 

2 Ibid., pp. 540, 541. 

8 Ibid., p. 380. 



THE CONSTITUTION IS THE HIGHER LAW. 


9 


Por several years after the adoption of the Constitution, there sat 
in Congress many of the men who had been active in the Constitu¬ 
tional Convention, and the debates of the early sessions of Congress 
throw much light on the meaning of the instrument. In the Sen¬ 
ate in January, 1800, Mr. Mason said: 

It will be found that the people, in forming their Constitution, meant to 
make the judges as independent of the legislature as of the Executive, because 
the duties they have to perform call upon them to expound not only the laws, 
but the Constitution also, in which is involved the power of checking the 
legislature in case it should pass any laws in violation of the Constitution, 
For this reason, it was more important that the judges in this country should 
be placed beyond the control of the legislature, than in other countries, where 
no such power attaches to them. 

He knew that they might pass unconstitutional laws, and that the judges, 
sworn to support the Constitution, would refuse to carry them into effect; and 
he knew that the legislature might contend for the execution of their statutes. 
Hence the necessity of placing the judges above the influence of these pas¬ 
sions ; and for these reasons the Constitution had put them out of the power 
of the legislature.'^ 

The celebrated “ Virginia resolutions ” of 1798, pronoimcing cer¬ 
tain alien and sedition laws unconstitutional and calling on the 
other States to join Virginia in resisting them, received a cold 
shoulder from most of the States, and the reply of Khode Island is 
somewhat typical of the answers received by Virginia: 

In General Assembly, February, A. L). 1799. 

Certain resolutions of the legislature of Virginia, passed on 21st of December 
last, being communicated to this Assembly— 

1. Resolved, That, in the opinion of this legislature, the second section of 
third article of the Constitution of the United States, in these words, to wit, 
“ The judicial power shall extend to all cases arising under the laws of the 
United States,” vests in the Federal courts, exclusively, and in the Supreme 
Court of the United States, ultimately, the authority of deciding on the con¬ 
stitutionality of any law of the Congress of the United States,^ 

It is ■ generally known that Webster had no doubts as to the 
authority of the court, and in the famous debate in the Senate in 
1830 between Mr. Webster and Mr. Hayne, with which most school 
boys are familiar, Mr. Hayne said: 

But there is one point of view in which this matter presents itself to my 
mind with irresistible force. The Supreme Court, it is admitted, may nullify 
an act of Congress by declaring it to be unconstitutional. Can Congress, after 
such a nullification, proceed to enforce the law, even if they should differ in 
opinion from the court? ^ 

Justice Clark says that Jackson had denied tlie authority of the 
Supreme Court in this respect. In November, 1832, South Carolina 
passed an ordinance, touching the tariff laws of the ITnited States, 
which, had the State been permitted to carry out, would have taken 
the State out of the Union. President Jackson issued a proclama¬ 
tion to the State, which had the desired effect, wherein he said: 

If it should be said that public opinion is a sufficient check against the 
abuse of this power, it may be asked why it is not deemed a sufficient guard 
against the passage of an unconstitutional act by Congress. There is, however, 
a restraint, in this last case, which makes the assumed power of a State 
more indefensible, and which does not exist in the other. There are two 
appeals from an unconstitutional act passed by Congress—one to the judiciary, 
the other to the people and the States." 


1 E^lljot’s Debates, vol. 4, p. 442. 
a Ibid., p. 533. 




10 


THE CONSTITUTION IS THE HIGHER LAW. 


Lincoln exercised the ri^ht to criticize the court, but he never 
denied the ri^ht of the court to declare void acts unconstitutional. 
In a speech in Springfield, Ill., he said: 

We believe as miieli as Jiid^e Dousjlas (perhaps more), in obedience to and 
respect for the judicial department of government. We think its decisions on 
constitutional questions, when fully settled, shoiihl control, not only the par¬ 
ticular case decided, hut the general jmlic.y of the coniitr.v, subject to he dis¬ 
turbed only by amendments to the Constitution as prov.ded in that instriiinent 
itself. IMore than this would he revolution.^ 

History does not support, and for that reason I can not a^ree with 
the statement that, ‘‘Judge Marsfiall recognized this in Marbury v. 
Madison, in which case in an obiter opinion he had asserted the 
j)ower to declare an act of Congress unconstitutional, for he Avound 
up by refusing the logical result, the issuing of the mandamus 
sought, because Congress had not conferred jurisdiction upon the 
Supreme Court to issue it.’* * - JMarbury v. Madison, as to the point 
in question, Avas in no sense of that Avord an obiter opinion, as it Avas 
a necessary part of the court’s opinion. 

The people in the Constitution had established the original juris¬ 
diction of the Supreme Court, but left it to Congress to regulate 
the appellate jurisdiction. The Congress in 1780, among other 
things, attempted to confer original jurisdiction on the court in 
mandamus. ITpon the application of Marbury, the court, under 
the act of 1780, granted the “ rule ” requiring the Secretary of State, 
Mr. Madison, to sIioav cause Avhy a mandamus should not issue 
compelling him to issue to Marbury his commission as a justice 
of the peace in the District of Columbia. IVhen the case came on 
for hearing before the court its jurisdiction to issue the Avrit of 
mandamus Avas questioned. Every hiAvyer knoAvs that the court’s 
first dut}^ Avas to decide that question, and the decision of that 
question could not be obiter, it being absolutely necessary. The 
court said: 

Uoiigress can not confer on this court an.v original jurisdiction. 

When the Constitution and an act of Congress are in conllict, the Constitu¬ 
tion must govern the case to which the.v both apply. 

An act of Congress repugnant to the Constitution is not law. 

To issue a writ of mandamus, requiring a Secretary of State to deliver a 
paper, would he an exercise of original jurisdiction not conferrahle by Con¬ 
gress, and not confen-ed Iw the Constitution on this court.^ 

So instead of holding out for greater authority, the court refused 
to accept of authority, Avhich the people in their Constitution had 
not conferred uimn the court. Tlie Avrit of mandamus Avas refused, 
not because “Congress had not conferred jurisdiction,” but be¬ 
cause Congress Avas acting Avithout jurisdiction, as the people had 
already acted Avhen they adopted the Constitution. 

The court may have used obiter on another question in this case, 
but, if so, its Avords Avill sound very SAveet to the readers of Mr. 
Clark. Keep in mind that it Avas the Secretary of State, a great 
Cabinet officer, Avhose acts Avere in question in this case. The court 
savs: 


Mleply to Douglas, .Tune 26. 18.57, Centenary Edition of Lincoln’s Speeches. 
=* Some Defects in the Constitution, p. 14. 

* Marshall's Constitutional Decisions (Dillon), 2. 



THE CONSTITUTION IS THE HIGHER LAAV. 


11 


The very essence of civil lil)erty ceitainly consists in the rijtht of every 
individual to claim the protection of the laws wlienever he-receives an injury. 
One of the first duties of jiovernineiit is to afford that protection. In Great 
Britain the Kiiifj; himself is sued in the respectful form of a petition, bnt he 
never fails to comi)ly with the jiidftment of his court. 

Tlie Government of the United States has been emi)hatically termed a 
jrovernment of laws, and not of men. It will certainly cease to deserve this 
high appellation if the hiws furnish no remedy for the violation of a vested 
right. 

Questions in their nature political, or which are by the Constitution and 
laws submitted to the Executive, can never be made in this court. 

But if this be not such a (piestion ; if, so far from being an intrusion into 
the secrets of the Cabinet, it Vespects a paper which according to law is 
upon record, and to a copy of which the law gives a right on the payment 
(d‘ 10 cents; if it be no intermeddling with a subject over which the execu¬ 
tive can be considered as having exercised any control; what is there in 
the exalted station of the officer which, shall bar a citizen from asserting 
in a court of justice his legal rights, or shall forbid a court to listen to the 
claim, or to issue a mandamus directing the performance of a duty not de¬ 
pending on Executive discretion, but on particular acts of Congress and the 
general principles of law? 

If one of the heads of departments commits any illegal act, under color 
of his office, by which an individual sustains an injury, it can not be ‘pre¬ 
tended that his office alone exempts him from being sued in the ordinary 
mode of proceeding, and being compelled to obey the judgment of the law. 

The court held that Marbury had a ri^ht of action against the 
Secretary of State to compel him to deliver his* commission, but 
that he was in the wrong court, as the Constitution had not con¬ 
ferred original jurisdiction on the Supreme Court to issue manda¬ 
mus. 

Among the many criticisms of the Supreme Court made by Jus¬ 
tice Clark, he has this to say concerning the fourteenth amend¬ 
ment. 

Aware of this defect, the court since the war has sought to found its juris¬ 
diction to nullify legislative action upon the fourteenth amendment. It has 
been well said that that amendment, which was intended for the protection 
of the negro, had failed entirely in that purpose, but has become a very 
tower of strength to the great aggregations of wealth. Not only no force 
can be justly given to the construction placed by the Supreme Court upon 
the fourteenth amendment, from the knowledge of the history of its adoption, 
l)ut the words used can not fairly be interpreted as they liave been. “ Due 
process of law ” means the orderly proceeding of the courts, and the “ equal 
protection of the laws” was never intended to give to the Federal courts irre- 
viewable supremacy over Congress and the President.^ 

That section of the fourteenth amendment, referred to by Mr. 
Clark, is an inhibition against the States, and confers no rights 
upon Congress, other than to enforce the inhibition: “ No State 
shall make or enforce any law Avhich shall abridge the privileges or 
immunities of citizens of the United States; nor shall any State 
depriA^e any person of life, liberty, or property, Avithout due process 
of hiAv; nor deny to any person Avithin its jurisdiction the equal 
protection of the hiAvs.” Shortly after the Civil War, Congress 
passed laAvs Avhich came before the court, and the attorney for the 
Ignited States contended that they Avere authorized by the fourteenth 
amendment. 

The court held that the language of the acts did not bring them 
Avithin the fourteenth amendment, and that the acts Avere repugnant 
to the tenth amendment, supra. I doubt if there can be found a 


1 Back to the Constitution (Clark), 11. 




12 


THE CONSTITUTION IS THE HIGHER LAW. 


single opinion by the Supreme Court that warrants the attack of 
Mr. Clark. The court has consistently held that the fourteenth 
amendment applies only to the States, acting by their authorized 
agents, as the legislature, the courts, etc., and that it does not in¬ 
hibit the citizens of a State, except where they represent and speak 
for the State. 

Many other statements of Mr. Clark are not supported by the 
facts, for instance, that the income tax law of 1894 was passed by 
“ the lower house unanimously, and I believe there were only one 
or two votes against it in the Senate. The President, who was a 
good lawyer, approved it,” ^ and then if was declared unconstitu¬ 
tional by “ five elderly lawyers, selected by influences naturally 
antagonistic to the laboring classes.” ^ The facts are, that the law 
passed the House, not unanimously, but by a vote of 204 for to 140 
against it. In the Senate the vote was 39 for and 34 against, with 
12 Members refusing to vote, and President Cleveland refused to 
approve of the bill, and allowed it to become a law by holding it 
for 10 days.3 It is more than likely that the ability of the minority 
who opposed the act, and of the “ President, who was a good lawyer,” 
who refused to approve the same, was greater than the ability 
of those who “ unanimously ” passed the law. Read and study the 
lives of the “ elderly lawyers ” who compose the Supreme Court 
now, or at any time prior, and decide for yourself if there is anv 
reason why they should be “ antagonistic to the laboring classes.^’ 
Read the opinions of the Supreme Court for the past 20 years, and 
see if these “ elderly lawyers ” have not by obiter blazed the way for 
much of the progressive legislation during that period. Read the 
recent opinion of the court on the Adamson law and you will be 
able to make a pretty good guess as to the character of railroad 
legislation we have a right to expect within a reasonably short 
period. 

The words of Lincoln , in 1860 seem quite pertinent at this time. 
Senator Douglas, without going into the facts, declared to his 
people that his position on the question of slavery was the position 
of the “ fathers.” Lincoln, in a speech in 1860 in Cooper Union, 
replied to the assertion of Douglas, as to the position of the 
“ fathers,” using these words: 

But lie [Douglas] has no right to mislead others who have less access to 
history, and less leisure to study it, into false beliefs that our fathers who 
framed the Government under which we live were of the same opinion—thus 
substituting falsehood and deception for truthful evidence and fair argument. 

Preston A. Shinn. 

Pawhuska, Okla. 


1 Government by Judges (Clark), 12. 

2 Defects in Constitution of the United States (Clark), 13. 

3 Senate Document 547, p. 13, of 60th Congress, 2d Session. 

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